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On Friday 10 January 2020, the London Central Employment Tribunal delivered its much-anticipated judgment in the equal pay case pursued by journalist Samira Ahmed. This follows the hearing that took place in October and November 2019 and which attracted widespread media attention (as you might expect).

In summary, the Tribunal agreed that Ms Ahmed had performed like work to a male comparator, Jeremy Vine, but had been paid considerably less for that work. The BBC failed to demonstrate to the Tribunal that there was a factor other than sex for the lower pay received by Ms Ahmed.

While no decision has yet been delivered regarding remedy, this will be a blow to the BBC and may result in further expensive claims being pursued by other female talent.

Equal pay

Equal pay has been a thorny topic for the BBC in recent years following the December 2016 Royal Charter which requires it to publish a report for each financial year. Among the information to be published in that report is the name of all individuals working with or for the BBC who were paid more than £150,000 during the relevant year from licence fee revenue.

The first such report in July 2017 revealed that 96 individuals fell within the reporting requirement (having been paid over £150,000) – 65 men and 31 women. Of the seven individuals who were paid more than £500,000, all were men. During the period, Mr Vine had been paid between £700,000 and £749,000.

Since 2017 many female BBC workers and presenters have petitioned the BBC to re-consider their pay and to award them significant back payments. According to the BBC’s HR Pay Equality Unit, by October 2019 1,308 queries regarding pay had been received. Of those, 1,235 had been resolved and 758 individuals had received pay increases (498 women and 260 men).

Newswatch v Points of View

Ms Ahmed was engaged in May 2012 to present Newswatch; a 15 minute magazine format programme which is a forum for discussion and debate of viewers’ opinions on BBC News stories. She was to receive a fee of £440 per show – the same as her male predecessor.

Jeremy Vine was hired in April 2008 to present Points of View; also a 15 minute magazine format programme which airs the views of the BBC’s audience on all BBC shows – including BBC News. Mr Vine was paid a fee of £3,000 per show – almost seven times the fee paid to Ms Ahmed.

The BBC argued that Ms Ahmed was not entitled to the same pay as Mr Vine on the basis that:

the two programmes were different genres; Newswatch being a News programme within the BBC’s internal classification, and Points of View being classified as an Entertainment programme;

Newswatch was presented by “journalists”, whilst Points of View was presented by “household names”;

Points of View addressed viewers’ opinion on all BBC shows whilst Newswatch was limited to discussion on BBC News stories;

Points of View was aired on BBC 1 on Sundays with high audience figures whilst Newswatch was aired on the BBC News channel on Friday night and on BBC 1 on a Saturday morning as part of the Breakfast News programme (it received the vast majority of its viewers during the latter slot); and

ultimately, in addition to the points above, Mr Vine’s profile, experience and market value justified the higher pay (which was apparently necessary in order to retain him at the BBC when his original contract was signed).

Like work

The Employment Tribunal considered that the work performed by Ms Ahmed and Mr Vine was materially similar. In each case the show was pre-recorded, 15 minutes long, presented in a magazine format, scripted by a producer (in the respective presenter’s style) and presented by Ms Ahmed and Mr Vine using an auto-cue. It was noted that Mr Vine typically attended at BBC premises for around 3.5 hours in order to record a show, whilst Ms Ahmed attended for around 4 hours.

The Employment Tribunal acknowledged that Points of View was intended to have a more “light-hearted” nature than Newswatch. However, it was critical of the BBC’s suggestion that Mr Vine was required to have “a glint in the eye” to achieve this and questioned how this could be argued as a “skill” or “experience” justifying any difference in pay – let alone such a substantial difference in pay.

The Tribunal also found that the audience figures revealed that, for the relevant period, around 1.5 million people watched Newswatch each week, whilst approximately 1 million watched Points of View.

Accordingly, the Tribunal considered that Ms Ahmed performed “like work” to that performed by Mr Vine in accordance with section 65 (1) of the Equality Act 2010.

Material factor defence

As the Tribunal was satisfied that Ms Ahmed performed like work to Mr Vine and it was not contested that she received lower pay, the burden shifted to the BBC to demonstrate that there was a genuine material factor for the difference in pay that was not Ms Ahmed’s sex.

The Tribunal was critical of the contemporaneous evidence (or lack thereof) produced by the BBC regarding this point – including the failure to produce any individual who was involved in the fee negotiations that took place with Ms Ahmed and Mr Vine to give evidence. It was recognised that the discussions took place some time ago, but the Tribunal commented that this should not have been an insurmountable issue if the BBC had transparent pay structures and processes in place.

Various factors were advanced by the BBC as explaining the difference in pay including the profile of the programmes, the profile of the individual presenters, differences in their broadcasting range and experience, differences in the market rates for each of the individuals and market pressures when Mr Vine was hired for the particular role.

Each was rejected by the Tribunal, meaning that the equality clause in the Equality Act 2010 was triggered. The effect is that Ms Ahmed’s contract was amended to give her the benefit of the more favourable terms enjoyed by Mr Vine – i.e. the fee that she was to receive for presenting each episode of Newswatch during the relevant period was to be increased from £440 to £3,000.

Fladgate comment

The Tribunal did little to hide its criticism of the BBC case and evidence in its judgment. It is clear that they were left unimpressed with several arguments raised and the failure to call relevant witnesses and produce compelling contemporaneous evidence.

Equal pay has been a significant issue for public sector employers for many years and commentators have warned that this is a topic also likely to affect private sector employers sooner rather than later. A material increase in equal pay claims has not yet been seen (in our experience at least) but should not be ruled out.

Those clients operating in the media sector or who otherwise regularly engage with “talent” or “personalities” should be careful to learn lessons from this decision. Keeping a contemporaneous record of fees paid to these individuals and of the reasons for any difference in those fees would be wise – as well as taking a more proactive and co-ordinated approach to setting fees within the business to ensure that they are appropriate and fair.

The BBC will no doubt be considering its options carefully and will be wary of further similar claims (which we understand are already in motion).

If you would like to discuss further, please contact Mike Tremeer: mtremeer@fladgate.com

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